Protect It Or Lose It!

The only means of access to a first floor flat was lost because the right to use an external staircase had not been protected at the Land Registry.

A recent Court of Appeal decision highlights the crucial importance of ensuring that rights over neighbouring property are properly documented and protected at the Land Registry.

The law relating to rights of way is complex. If certain requirements are satisfied then the right will amount to an "easement", but not all easements are enforceable against a purchaser of the land. It depends on how the right was created:

If expressly granted by deed then it is a "legal easement" and its grant must be completed by registration at the Land Registry before it will bind a purchaser. If expressly granted but not by deed, then it is an "equitable easement". Before the rules changed in 2003, equitable easements counted as "overriding interests", which meant they were enforceable against purchasers without having to be protected on the Register. Since 2003, equitable easements only bind a purchaser if they are "noted" on the Register. If acquired by prescription (that is where a right is used openly for at least 20 years without the permission of the land owner) then it can still qualify as an overriding interest and it need not be referred to on the Register in order to bind a purchaser. The recent case concerned two neighbouring buildings, number 37 owned by Mr Chaudhary and number 35 owned by Mr Yavuz, which were separated by an alleyway belonging to number 35. Mr Yavuz agreed that Mr Chaudhary could build a staircase in the alleyway providing access to the first floor of both buildings, enabling Mr Chaudhary to remove the internal staircase from number 37. Unfortunately, although he asked Mr Yavuz to formalise the right in a deed of easement, no deed was granted and no application was made to the Land Registry to protect the right to use the staircase. Then number 35 was sold and the new owner removed the connection to number 37, leaving no means of access to the first floor. Mr Chaudhary took his case to the Court of Appeal but he lost.

The court held that the right to use the...